Appeals : Arbitrator Decisions : #89 - May 30, 2003

D E C I S I O N

BACKGROUND:

1. The Claimant submitted an application for compensation as a Primarily Infected Person under the Transfused HCV Plan ("the Plan"), as set out under the terms of the 1986-1990 Hepatitis C Settlement Agreement ("the Settlement Agreement").

2. By letter dated February 27, 2003, the Administrator denied his claim on the basis that the Claimant had not provided sufficient evidence to prove that he received blood during the period from January 1, 1986 - July 1, 1990 ("the Class Period").

3. Unfortunately, by the time his claim was denied the Claimant had passed away. Consequently, the Claimant's daughter, acting on behalf of his estate, requested that an Arbitrator review the decision of the Administrator.

4. Written submissions, dated April 8, 2003, were received from Counsel for the Administrator of the Fund ("Fund Counsel").

5. In an April 11, 2003 telephone conversation with the Claimant's daughter she indicated to me that she did not want a hearing of any sort. She also declined an opportunity to respond to the submissions of Fund Counsel. Rather, she simply requested that I review the file and advise her if I had any questions. I did not have any questions and my decision is set out below.

EVIDENCE AND ANALYSIS:

6. The relevant facts do not appear to be in dispute and are summarized below:

7. In the Blood Transfusion History Form ("TRAN 5"), the Claimant identified two occasions when he might have received a blood transfusion. (Claim file, pages 126-127) The form states:

1988 - not sure- East General Hospital?- Knee surgery and 02-1990 - not sure - Scarborough General H. surgery.

8. The Traceback conducted by the Canadian Blood Services indicates that the Toronto East General and Orthopaedic Hospital and the Scarborough General Hospital have confirmed they have the Claimant's records and that he was not transfused. (Claim file, pages 129-130)

9. The Toronto East General and Orthopaedic Hospital records relating to the Claimant's surgery in1988 are contained in his file. The records indicate that he was hospitalized from January 5, 1988 through to January 19, 1988 and underwent a high tibial osteotomy on his left knee. The records also indicate the Claimant was cross-matched for two units of packed cells (Claim file, page 94).

10. However, a review of the Toronto East General and Orthopaedic Hospital records shows no indication that blood was given to the Claimant during his admission.

More precisely,

oThe IV infusion record does not record a blood transfusion; (Claim file, page 96)

oThe fluid balance record lists the fluids which are given to the patient intravenously. There is no record of any blood being given; (Claim file, page 95)

oThe doctor's order sheet does not record an order for a blood transfusion; (Claim file, page 91)

oThe operation record describes the surgery and makes no mention of blood being transfused. (Claim file, pages 92-93).

11. Prior to his death, the Claimant was treated by Dr. J. Heathcote. In her note dated August 10, 2001, she states:

He has Hepatitis C cirrhosis documented on liver biopsy in 1992, likely acquired in childhood. (Claim file, page 52)

12. Dr. Morana has completed the Treating Physician Form ("TRAN 2"). In TRAN 2, Dr. Morana states that he has known the Claimant for 20 years. Dr. Morana was asked if there was anything in the Claimant's medical history to indicate that he was infected with Hepatitis non-A, non-B or the Hepatitis C virus prior to January 1, 1986. He answered "yes" to this question but referred only to the Claimant having come from Italy as the explanation, adding a question mark. (Claim file, pages 36-41)

Reason for the Review:

13. In her request for a review of the Administrator's decision to deny his claim, the Claimant's daughter states:

My father suffered for many years. We had no support from - the family doctor, had many surgeries, could have the disease from - dirty tools or other people passed on on operating room. He died in peace on Oct-16-2002.

Submission of Fund Counsel:

14. Counsel for the fund submitted that the Administrator has an obligation to assess each claim and determine whether the required proof for compensation exists.

15. Counsel pointed out that the Administrator has no discretion to allow compensation where the required proof does not exist.

16. Counsel maintained that the financial sufficiency of the Fund depends upon the Administrator properly scrutinizing each claim and determining whether the claim would qualify.

17. Counsel relied on the absence of proof the Claimant had received a blood transfusion during the Class Period to argue the Administrator properly determined there is no entitlement to compensation under the Plan.

Analysis:

18. In order to qualify for compensation under the terms of the Transfused HCV Plan the Claimant must satisfy the criteria set out in that Plan.

19. Article 3.01 of the Transfused HCV Plan provides that a person claiming to be a Primarily-Infected Person must provide the Administrator with, amongst other things, "medical, clinical, laboratory, hospital, The Canadian Red Cross Society, Canadian Blood Services or HemaQuebec records demonstrating that the claimant received a Blood transfusion in Canada during the Class Period". As indicated above, the Settlement Agreement establishes the "Class Period" to be "the period from and including 1 January 1986 to and including 1 July 1990."

20. No records demonstrating that the Claimant received a blood transfusion in Canada during the Class Period were produced. Rather, the preponderance of evidence suggests the Claimant has never had a blood transfusion.

21. Neither the Administrator, nor I, as an Arbitrator, have discretion to grant compensation to individuals infected with Hepatitis C who cannot show they received a transfusion during the Class Period.

22. Accordingly, I find the Administrator correctly determined that the Claimant is not entitled to compensation pursuant to the Hepatitis C 1986-1990 Class Action Settlement, as it has not been demonstrated that he received a blood transfusion during the Class Period.

Determination:

23. The decision of the Administrator to deny the Claimant compensation pursuant to the Hepatitis C 1986-1990 Class Action Settlement is upheld.

DATED AT TORONTO, THIS 30TH DAY OF MAY, 2003

Tanja Wacyk, Arbitrator